RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/DS/M/34 
4 August 2006 
 (06-3768) 
Special Session of the Dispute Settlement Body 
13 July 2006  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 13 July 2006  
 
Chairman: Mr. Ronald Saborío Soto (Costa Rica) 
  
The Chairman
 welcomed delegations to the thirty-sev enth meeting of the Special Session and 
said that the airgram for the meeting had been circ ulated in WTO/AIR/2861 and that the draft agenda 
(TN/DS/W/88) contained two items, namely:  (i) discussion of contributions by delegations;  and 
(ii) "Other Business".  With respect to the first ag enda item, he said that three new contributions had 
been received from Members since the last meeting of the Special Session and he proposed that they 
should be considered at the present meeting.  Regard ing the second agenda item, he said that he would 
like to make a statement about the future work of the Special Session.  He asked whether any 
delegation wished to raise a specific issue under th is agenda item.  There was no response from the 
floor and the agenda of the meeting was adopted.   
1. Discussion of Contributions from Members 
1. The Chairman  reiterated that three new proposals had been received since the last meeting of 
the Special Session.  These were a contribution from Japan on third-party rights circulated as 
Job(06)/175;  a contribution from Cuba, India and Malaysia containing revisions to texts initially 
proposed in TN/DS/W/47, and lastly, a contributi on from Switzerland on third-party rights circulated 
as Job(06)/224.  He proposed that since the contribut ions of Japan and Switzerland related to the same 
issue, they should be taken up together.  He then invited Japan to present its proposal.   
2. The representative of Japan  said that Japan did not see a need for altering the structure of 
Article 4.11 of the DSU.  Currently, if  a Member's request to join consultati ons under this Article was 
not accepted, that Member was free to request its own consultations with the Member that had 
implemented the alleged inconsistent WTO measures.  Japan could not support the "all or nothing" approach nor the "double negative" approach, but co uld agree to two elements contained in earlier 
proposals by Members, such as the Group of Six Co untries and Hong Kong, China.  The first element 
related to having a requirement oblig ing Members receiving consultation requests from third parties to 
respond to them within a certain ti me-frame.  This requirement would help third parties, particularly 
non-residents to plan ahead and generally enhance predictability.  The second element related to 
requiring Members receiving consultati on requests from third parties to respond to them in writing.  It 
was logical to stipulate the same obligation not only fo r requests but also for repl ies.  This proposal was 
not entirely new; it had built on earlier proposals by  Members.  The textual contribution on these two 
elements should assist Members in their text-based negotiations.  She stressed that this contribution only 
related to Article 4.11 consultations and was without prejudice to Japan's position on other aspects of 
third-party rights. TN/DS/M/34 
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  3. The Chairman
 thanked Japan for its contribution and invited Members to provide their 
comments informally on the proposal.  After the discussion, he thanked Members for their 
constructive engagement and invite d Switzerland to present its proposal. 
4. The representative of Switzerland  said that the aim of their proposal was to strengthen the 
rights of third parties at the consultations phase.  The means to achieve this aim were information and 
transparency.  The proposal was based on the convic tion that third parties, as well as all other WTO 
Members, had a genuine interest in obtaining clear information on ongoing consultations and 
specifically, the result of such consultations.  Th e interest did not lay exclusively in actively 
participating in the discussions held within th e framework of consultations – which remained 
confidential – but also and perhaps principally, obt aining comprehensive information in due time.  
Without a timely notification of the status or the result of consultations, it could not be excluded that 
the settlement of a given dispute came at the expen se of countries not participating in that dispute.  
Given these considerations, Switzerland was of the view  that paragraph 6 of Article 3 of the Dispute 
Settlement Understanding (DSU) shoul d be refined through the inclus ion of a new paragraph 4a in 
Article 6 of the DSU.  This proposal would oblige di sputing parties to provide a status report to the 
DSB every 60 days on the evolution of the c onsultations.  The reports should enhance the 
transparency of the dispute settlement system as a whole and prevent the staying in limbo of 
consultations for a long period.  It should be not ed, however, that the proposal did not prejudice the 
right of the complaining party to request the establishment of a panel.   
5. WTO Members had a genuine interest in knowin g about the content of mutually agreed 
solutions.  The proposal would oblige the disputing parties not only to notify that a solution had been 
mutually agreed but to communicate the substance of the agreed solution.  With respect to cases 
staying in limbo, it was not the objective to dig into the past and resurrect dormant cases.  The 
proposal was prospective in nature.  The idea was to avoid cases staying in limbo for a long period in 
the future.  This was the raison d’être  of the last sentence of the proposal.  Paragraph 4a of Article 6 
was of a procedural nature.  There was a certain overl apping of the four alternatives contained therein.  
The stress was less on choosing one alternative or the other but more on the fact that information on 
the state of the consultations was to be given to the DSB.  He said that the proposal had benefited 
from comments provided informally by Members unde r the auspices of the Mexican Group.  This 
Group had proven to be a very valuable tool in furthering the DSU negotiations.  It was the strong intention of Switzerland to remain fully engaged in  the Mexican Group as well as in the discussions in 
the Special Session. 
6. The Chairman
 thanked Switzerland for its contribution and invited Members to provide their 
comments informally on the proposal.  After the discussion, he thanked Members for their active 
participation and noted that it was clear from the discussions on both the Swiss and Japanese 
proposals on third-party rights that there were  still a number of issues which needed further 
clarification.  Different approaches towards enhanc ing third-party rights ha d been suggested and it 
was imperative that they all be considered fully by the Special Session.  He thanked once again the 
Swiss and Japanese delegations for their contribu tions and invited Cuba, India and Malaysia to 
present their proposal.   
7. The representative of Malaysia  recalled that a group of like-minded developing countries had 
presented a number of proposals in two contribut ions during the pre-Cancun stage of the DSU 
negotiations.  These proposals were contained in two documents TN/DS/W/18 dated 7 October 2002 
and TN/DS/W/19 dated 9 October 20 02.  The text of the amendment to the DSU based on these 
proposals was contained in TN/DS/W/47 dated 11 Fe bruary 2003.  There was convergence on some 
of these proposals which were fully or partially in cluded in the Balas text, while others triggered a 
number of questions and comments from some Member s.  Based on the discussions in the pre-Cancun 
days as well as informal consultations with some  other Members in the post-Cancun work of the 
DSB-Special Session, the proponents had revisited the texts contained in TN/DS/W/47 to address  TN/DS/M/34 
 Page 3 
 
 
  questions and concerns as well as to make legal drafting changes.  The resulting revisions were now 
embodied in the document presently before the Special  Session.  In introducing the proposal, she said 
that she would like to focus initia lly on what was not contained in these revisions.  Proposals relating 
to paragraphs 2, 4 and 6 of Artic le 17 and paragraph 10 of appendix 3 of the DSU did not find a place 
in these revisions.  The proponents were continuing to revisit these texts in the light of developments 
in the dispute settlement practice including recent changes in the Appellate Body Working 
Procedures.  They were yet to make any suggesti ons on these four proposals.  The revision exercise 
also took into account the ongoing consideration by the Special Session of the Category II Special and Differential Treatment proposals tabled earlier in the Special Session of the Committee on Trade and 
Development.  Some Members of the Like-Minde d Group had also tabled independently proposals 
pertaining to Articles 4.10, 12.10 and 21.3 of th e DSU.  Progress on these issues should advance the 
work of the Special Session.   
8. With respect to notification of mutually agr eed solutions, she said that it was the only means 
through which Members would learn about solutions agreed between the parties to the dispute.  
Transparency demanded that the terms of such so lutions were made available to WTO Members in 
sufficient detail and without undue delay after arriving at the solution.  The proposal had been 
retained in its entirety in its substance, although certain drafting changes had been made.  The first 
change was to avoid judgmental language regarding sufficiency of the details of the terms of the 
solution.  The second change was a purely drafting change: the term "solution" was used instead of 
"agreement" in respect of what was to be notified.  Regarding amicus curiae  briefs, the proponents 
recognized the strong views that it had attracted from some Members.  However, for the reasons 
which were well known in light of the earlier discussi ons on the subject, including the debate on this 
issue in the General Council, the proponents contin ued to require a change to the DSU to ensure a 
correct interpretation of the word "seek" in Article 13  of the DSU.  In light of the discussion so far, 
the proposal now recognized the right of the panel to  seek information contained in Article 13.  The 
proposal limited this right to information or advi ce that the panel sought so as to exclude unsolicited 
inputs into the dispute settlement process.  They were  mindful of the fact that the Appellate Body had 
drawn up procedures for accepting such unsolicited briefs .  That was an unacceptable step in the light 
of the objective of the proposal.  Therefore, a foot note was proposed to be added to paragraph 9 of 
Article 17 relating to the Appellate Body Working Procedures, clarifying that the Appellate Body 
shall seek or accept information only from particip ants and third participants to a dispute. 
9. With respect to cross retaliation, the propone nts believed that developing-country Members, 
when in a dispute with a developed-country Me mber, should have the right to cross-retaliate 
notwithstanding the threshold for such cross-retalia tion contained in Article 22.3.  That demand was 
reflected in the revised text for Article 22.3  bis.  The textual revisions were purely of a drafting 
nature.  Regarding reimbursement of litigation co sts, the proponents continued to believe that 
reimbursement of these costs to developing countr ies was important to improve their access to the 
dispute settlement mechanism.  Some developed- country Members had a number of questions and 
concerns relating to definitional and operationa l issues.  Taking into account these questions and 
concerns, Article 3  bis had been re-drafted to make it simp le, practical and operational by providing 
flexibility to panels and the Appella te Body to determine what were reasonable costs of litigation.  In 
answer to questions relating to implementation of  a decision on litigation costs, a last sentence had 
been added to enable this decision to be an inte gral part of the recommendations and rulings to be 
adopted by the DSB.  With regard to special a nd differential treatment (SDT) at the consultation 
stage, the proponents had proposed that Article 4.10 of DSU should be strengthened to make it 
operational and effective.  The discussions on this issue had raised a number of questions, including 
which Article in the DSU this provision should come under and the consequences of such an 
obligation in the dispute settlement process.  To  address such questions and concerns, apart from 
making the language in Article 4. 10 mandatory, a new Article 4.10  bis had been added.  This Article 
did two things.  Firstly, it obliged developed-c ountry Members to provide adequate opportunity to 
developing-country Members to make requests for SDT.  Secondly, it obliged them to explain the TN/DS/M/34 
Page 4  
 
  rejection of each request.  This was simply an ex ercise in making the existing Article 4.10 operational 
and effective.  In addition, to ensure clarity of jurisdiction, a new sentence was proposed to be added 
to Article 6.2 to enable this matter to be jus ticiable before panels a nd the Appellate Body.  
10.  With respect to SDT at the panel stage,  certain amendments had been proposed to 
Article 12.10 to make it operational.  The first was to extend the consultation period for developing 
countries and the second was to provide them with more  time for submissions.  The original text had 
been revisited and replaced by two simple cha nges:  a new second sentence and a new penultimate 
sentence to capture both these objectives.  Regardi ng SDT in the determination of the reasonable 
period of time (RPT), the original proposal of an am endment to Article 21.2 of the DSU had prompted 
a number of questions from Members who believed fixing benchmarks was not practical and that it 
would be better to decide the RPT on a case-by-case b asis taking into consideration the circumstances 
of the case.  This proposition had been accepted by the proponents.  As a result, a simple footnote had 
been added to Article 21.3(c) obliging the arbitrat or determining the RPT to take into account the 
particular problems and interests of developing- country Members in interpreting the particular 
circumstances that would determine the length of the RPT. 
11. The Chairman
 thanked Malaysia, Cuba and India for their contribution and invited Members 
to provide their comments informally on the prop osal.  After the discussion, the Chairman thanked 
Members for their constructive comments and said that  there were a number of issues which had to be 
clarified further.  He commended the proponents for taking into account the views of Members in 
revising their proposal which had made a meaningful contribution to the work of the Special Session.  
2. Other Business 
12. The Chairman  expressed his gratitude to delegations  for participating actively in the 
negotiations.  The informal work being done by them reflecting the bottom-up approach had 
contributed immensely to the negotiations.  This pr ocess had resulted in draft legal texts on a number 
of issues and this had given the Special Session an ex cellent basis to make further progress in the next 
phase of work.  He urged Members which were in  the process of revising their contributions to 
consult informally with other Members and seek th eir views before presenting them to the Special 
Session.  He said that the African Group had inform ed him that their revised contribution was in the 
process of being finalized and should be ready by the time of the next meeting of the Special Session.  He recalled that he had requested delegations to st art giving thought to how the Special Session could 
work towards a rapid conclusion of the negotiations as instructed by Ministers at Hong Kong, China.  
He had already started consulting delegations on this issue and it w as his intention to continue the 
informal consultations with Members, in order to  further shed light on the work programme in the 
months ahead, building on the work accomplished t hus far.  He announced that the Special Session 
was scheduled tentatively to meet on the following dates after the summer break:  11-12 September;  
4-5 October;  9-10 November;  and 11-12 December. 
 
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